Savannah Tour Guides Free Speech

Government Cannot Decide Who Is, Or Is Not, Allowed To Tell A Story

Tour guides are storytellers, and in America, you shouldn’t need a license to tell a story.

But, for years, tour guides in the city of Savannah, Georgia were required to obtain a government permission slip before they could tell their stories—and unlicensed storytelling risked fines of up to $1,000, 30 days in jail or even forced participation in a municipal “work gang.”

To obtain a license to guide a tour in Savannah, aspiring guides had to pass a 100-question multiple choice exam that might have nothing at all to do with the subject of their tour, had to pay an annual licensing fee and had to undergo a criminal background check. Tour guides were even required to undergo a physical exam by a doctor to determine whether they were sufficiently healthy to exercise their First Amendment rights. Yes, in Savannah, the government could declare a tour guide too unhealthy to talk.

To challenge these requirements, a group of Savannah tour guides joined with the Institute for Justice to file a federal lawsuit. The group sought to vindicate a simple principle: Tour guides are storytellers, and the government can’t be in the business of deciding who is (or is not) allowed to tell stories.

In response to IJ’s lawsuit, Savannah’s City Council voted in October 2015 to repeal the City’s tour guide licensing law. One member of the City Council explained his decision to repeal the law, stating that “when you come up against the U.S. Constitution, you lose.”

Although Savannah’s licensing law has now been repealed, the guides are continuing to challenge a separate provision charging tour guides a special tax just for speaking. Savannah charges tour guides a set fee for every member of their audience-penalizing guides just because people want to hear what they have to say.

Savannah Tour Guides Free Speech

Date Filed

November 17, 2014

Original Court

United States District Court for the Southern District of Georgia Savannah Division

Current Court

United States District Court for the Southern District of Georgia Savannah Division

Case Status

Open

Attorneys

Media Contact

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Timeline and Case Documents

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Introduction

Tour guides are storytellers. Some tell stories about history; some tell stories about art and architecture; and some tell stories about ghosts and haunted houses. Whatever topic they choose, they make their living through their words. In that way, a tour guide is no different from a stand-up comedian, a poet or a journalist.

But tour guides in the city of Savannah, Georgia are required to obtain a license from the government before they can tell their stories—and unlicensed storytelling risks fines of up to $1,000, 30 days in jail or even forced participation in a municipal “work gang.” To get a license, guides must surmount a bureaucratic mountain of requirements. Tour guides must pass a 100-question multiple choice exam that may have nothing at all to do with the subject of their tour, must pay an annual licensing fee and must undergo a criminal background check. Tour guides are even required to undergo a physical exam by a doctor to determine whether they are sufficiently healthy to exercise their First Amendment rights. No joke: In Savannah, the government can declare a tour guide too unhealthy to talk.

The Institute for Justice is bringing suit on behalf of Savannah tour guides who are fed up with the city’s interference with their constitutional right to make a living by telling stories. In this country, government isn’t allowed to throw people in jail because they engage in unauthorized talking. Everyone is free to talk, regardless of whether the government deems them “qualified.”

Tour guides are storytellers, and the government can’t be in the business of deciding who is (or is not) allowed to tell stories.

Restoring the First Amendment rights of tour guides in Savannah will ensure that government respects the First Amendment rights of everyone who talks for a living—whatever their profession—and will keep the government out of the business of deciding who is or is not allowed to tell stories.

Savannah’s Speech Restrictions

Tour guides in Savannah are required to jump a series of hurdles before they can exercise their First Amendment right to tell a story. For the government to impose similar requirements on other professions that talk or write for a living—such as journalists, comedians or novelists—would be unimaginable.

Before anyone can talk to a tour group in Savannah—either as the group’s primary guide or as an “actor” talking to a group led by someone else—they must first pass a 100-question multiple choice test administered by the government.[1] This is no simple task. The study guide published by the city is more than 100 pages long.[2] The test, meanwhile, quizzes tour guides on historical details that are as obscure as they are irrelevant. For instance, guides may be required to answer questions about the ethnic and national background of the “Telfair family,” the historical significance of “Alfred E. Beach” or the location of the “[g]raves of the Yellow Fever victims of 1820.”[3] The college professor who authored the city’s study guide has estimated that guides must devote three months of full-time work to prepare for the test.[4] And tour guides are required to devote that time—and pass the test—even if they don’t want to talk about history at all, and instead want to tell ghost stories or talk about the filming of Forrest Gump or Midnight in the Garden of Good and Evil.

For the privilege of taking this test, applicants for tour guide licenses are required to pay a fee of $100.[5] That fee covers two opportunities to take the test. After that point, applicants must pay the fee again if they want to try to take the test again.[6]

Even after applicants pass the city’s test, they still aren’t done. In order to get a license, prospective tour guides must undergo an examination by a doctor to determine if they are, in the words of the city’s regulation, “afflicted with any disease or infirmity which might make [them] an unsafe or unsatisfactory tour guide.”[7] The physician is required to fill out a form certifying that the applicant is “[q]ualified” to perform the “suggested job duties” of a tour guide, including “[v]erbal communication.”[8] The city provides no guidance on what kinds of “diseases” or “infirmities” might make tour guides unqualified to exercise their First Amendment rights. Whether you’re physically strong enough to be allowed to talk is apparently up to your doctor’s discretion.

Once tour guides are able to pass these hurdles and obtain a license, they must jump through additional hoops to renew their license. Guides must submit a copy of their proposed tour route to the city, must pass the city’s exam a second time three years after becoming licensed, must undergo examination by a doctor every two years and must pay an annual $10 license renewal fee for each company that they work for.

Tour guides in Savannah are also subject to a discriminatory speech tax that singles out their First Amendment activity for special treatment. For every person that they have on a tour, guides are required to pay a $1 fee to the city. This fee does not apply to other groups that use the city’s public spaces for non-expressive activity, such as scavenger hunts. And this fee applies even if the guides are not paid for their tour. Many guides accept payment only at the end of the tour, and allow audience members to withhold payment if they are not satisfied. If an audience member chooses not to pay, the guide still is required to pay a $1 fee to the city simply for the privilege of having spoken.

Violations of the City’s tour guide ordinances are punishable by fines up to $1,000 or by up to 30 days imprisonment in a “work gang[ ] or other means of confinement.”[9]

The Plaintiffs

Each of the four plaintiffs in this lawsuit illustrates the harm that Savannah’s regime imposes on real people.

Every day, Dan Leger dresses in a seersucker suit, bow tie and straw hat, in order to give tours of Savannah under the name “Savannah Dan.” Dan already has a tour-guide license, but he doesn’t think he should need a government permission slip to practice his trade. Dan also would like to pay others to give tours on a part-time basis, but has been unable to find anyone willing to go through the hassle of obtaining a license only for part-time work. Dan is confident there is no “tour guide” exception to the U.S. Constitution: The First Amendment applies to tour guides, just as it applies to journalists, novelists or others who speak for a living. Dan served in the military to protect this country’s freedoms, and feels strongly about vindicating his First Amendment rights.

For the past 14 years, Jean Soderlind has run a ghost tour company called “Ghost Talk, Ghost Walk.” She gave tours personally for years, but in 2009 she decided that maintaining a license wasn’t worth the bureaucratic hassle. Because Jean is not currently licensed, she is not allowed to conduct tours of the city. She can run a tour company, she can pay guides to give tours and she can even tell the guides who work for her exactly what to say, but she cannot step in to say these things herself if one of her guides is sick or otherwise unavailable. This is particularly outrageous because Jean’s company gives ghost tours. Her tours about ghosts and folklore simply have nothing to do with the dry recitation of historical facts tested on the city’s exam.

Michelle Freenor, meanwhile, is a licensed guide, but worries that the city will take away her license because she suffers from health problems. Among other things, Michelle has lupus, Graves’ disease and connective tissue disease. She has difficulty walking, and sometimes is required to walk with a cane. These conditions in no way affect Michelle’s ability to give a good tour. That much is clear from Michelle’s excellent online reviews. But the city requires Michelle’s doctor to certify that she is able to perform all kinds of physical tasks that have nothing to do with her job as a tour guide, such as helping people in and out of horse-drawn carriages. Michelle believes her right to give a tour should be limited only by her own willingness to work and others’ willingness to listen—not by the government.

Finally, Michelle’s husband Steven Freenor teaches American history at a local college and high school. Steven sometimes brings his classes to Savannah for field trips, but he doesn’t personally teach them anything while they walk through Savannah: Because he does not have a tour guide license, he worries that he would face arrest or a fine for talking to his students about history outside the classroom. The guide restrictions impose further burdens by making it impossible for Steven to fill in for Michelle when she cannot lead a scheduled tour, even though he is clearly qualified to discuss history in the eyes of school and college administrators. These regulations—which literally forbid a history professor from talking about history—are not just offensive. They are contrary to the very principles of American government Steven teaches his classes about every day.

Government Cannot Decide Who Is, Or Is Not, Allowed To Tell A Story

Through their lawsuit, plaintiffs seek to vindicate a simple principle: Tour guides are storytellers, and the government can’t be in the business of deciding who is (or is not) allowed to tell stories.

In this country, the government does not get to choose who is or is not allowed to speak. Guides can decide for themselves whether they are sufficiently knowledgeable, healthy or otherwise “qualified” to exercise their First Amendment rights. And tour groups can decide whether they agree that any particular guide is worth listening to. If the city wants to get out a particular message about Savannah history, it can hire its own tour guides. It cannot silence private citizens instead.

In this country, the government does not get to choose who is or is not allowed to speak.

Moreover, the city cannot condition the right to speak on guides’ ability to pass a multiple choice exam. The City’s exam assumes that certain things are important for tour guides to know, and that certain historical facts are indisputably true. But—when it comes to history—the government shouldn’t be in the business of deciding what facts are relevant and true. Certain stories will inevitably go untold: The City’s test, for instance, features relatively few questions about the rich history of Savannah’s African American community. One could easily give a 100-question (or longer) test just about African American history, or just about the American Revolution or just about indigenous populations. The city simply cannot reduce the thousands of compelling stories about the City of Savannah to a multiple-choice test. What makes a good tour guide is the ability to give an entertaining tour about the things they—not the government—think are important.

These principles are no less true because tour guides are engaged in economic activity. If the First Amendment ceased to operate when people are paid to speak, it would have no operation in cases where an audience paid for a ticket for a comedy show, where a subscriber paid to receive a copy of the newspaper or where a publisher paid a novelist to buy the rights to his words. Of course that isn’t the law. Under the First Amendment, a customer’s best defense against a bad tour guide is the same as their best defense against a bad stand-up comedian: they can simply choose not to listen.

Government Cannot Single Out Speech For Discriminatory Taxation

In addition to challenging the government’s licensing requirements, plaintiffs in this case also challenge the city’s speech tax. The city’s speech tax makes the city’s tour guides pay a fee based on the size of their audience. But you can’t charge people extra taxes just for talking.

Once again, the First Amendment principle at stake is as simple as it is important. In a case involving the Minneapolis Star Tribune, the Supreme Court held that the government cannot single out First Amendment activity for discriminatory taxation without a compelling reason.[10] In that case, the government had imposed a special tax on ink, over and above the ordinary sales tax. The Supreme Court found the tax invalid as a special burden on the First Amendment activity of newspapers.

Savannah’s speech tax is unconstitutional under the same principle. Although the stated purpose of the tax is to pay for the maintenance of the city’s public spaces, the tax is not imposed on others who use those spaces for commercial activity. Groups who sell scavenger hunts to tourists are not charged the fee, even though those tourists impose burdens that are equal or even greater than the burdens imposed by tour groups. Likewise, professional dog walkers, or paid nannies, can walk through the city’s public spaces without paying the tax. Tourists who walk through the city without taking a tour also are not charged the tax. Only those who engage in protected First Amendment activity—by working as tour guides—are required to pay.

The city’s tax regulation makes no secret about targeting speech. The regulation specifically provides that no tax is due for “persons boarding a tour boat for dining and on-board entertainment purposes where a sightseeing tour is not the focus or emphasis of the event and where no tour narration is provided.”[11] The requirement to pay a tax thus turns on the presence or absence of a “tour narration.” But the city cannot single people out for special burdens simply because they choose to talk.

The Explosion Of Occupational Licensing

The United States is currently in the throes of an explosion of occupational licensing. In the 1950s, less than five percent of the workforce was required to obtain a government license to do their job.[12] Today, that number exceeds 30 percent.[13] As Suzanne Hoppough reports, there are now more than 1,100 different occupations that require a government license in at least one state (including such dangerous occupations as “secretary” and “florist”). This massive growth in occupational licensing has all too often gone entirely unremarked upon, and this silence has allowed politically-connected private industry groups to push protectionist legislation with no discernible benefits to the public health or safety.

As Savannah’s tour-guide license illustrates, there is nearly nothing local or state governments believe you should be able to do without first asking their permission—including describe things. With surprisingly little public outcry, the power to decide who gets to pursue a particular occupation has slowly shifted from entrepreneurs and consumers to bureaucrats and industry insiders. This litigation, then, is about much more than ghost tours: It is about the basic American right to earn an honest living, including the right to earn an honest living through talking.

Particularly as the nation tries to recover from a massive recession—and as individuals who have lost their jobs try to start over, often by starting their own businesses—it is imperative that people be allowed to pursue their dreams without the government standing in their way imposing unnecessary barriers in the form of occupational-licensing requirements. Only by setting people free—to describe, to create, to work—can we truly create sustained economic growth.

An Issue Headed For The Supreme Court

Plaintiffs in this case are willing to fight as long as necessary to vindicate their constitutional rights, even if that means litigating these issues all the way to the United States Supreme Court. And, increasingly, it seems the Supreme Court is exactly where this issue is headed—either in this or some other case.

The United States Court of Appeals for the D.C. Circuit recently issued a decision striking down similar tour guide licensing laws in the District of Columbia, on the ground that they violate the First Amendment.[14] Among other things, that court relied on the fact that “scores” of cities have “determined licensing tour guides is not necessary,” on the “puzzling” application of licensing requirements to “specialty tour guides” such as “ghost, food or movie tours,” and on the conclusion that “market forces” and “consumer review websites” are more than adequate to protect consumers against the risk of bad tour guides.

The United States Court of Appeals for the Fifth Circuit, however, has disagreed and has issued an opinion finding that New Orleans’ tour guide licensing laws do not violate the First Amendment.[15] The resulting conflict of authority is precisely the type of question that ought to be resolved by the Supreme Court. On the same day the Institute for Justice filed its lawsuit in Savannah, the Institute, which also represented plaintiffs in both the D.C. and New Orleans cases, filed a petition for certiorari asking the Supreme Court to review the decision of the Fifth Circuit upholding New Orleans’ law.

Because the Supreme Court announces constitutional law for the entire country, a decision from the Supreme Court vindicating the constitutional rights of tour guides would be a particularly significant victory for every American who talks for a living.

The Litigation Team

The Institute for Justice attorneys representing the plaintiffs are Robert Everett Johnson and Robert McNamara, who litigate economic liberty and First Amendment cases nationwide.

The Institute for Justice

The Institute for Justice is the national law firm for liberty. IJ is a public-interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication, outreach and strategic research, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by the government.

For more information contact:

Nico Perrino

Communications Coordinator

Institute for Justice

(703) 682-9320

nperrino@ij.org

[1] City of Savannah, Tour Guide Study Manual & Permitting Process, http://‌www.savannahga.gov/‌index.aspx?NID=1493.

[2] City of Savannah, Tour Guide Manual, www.savannahga.gov/DocumentCenter/View/4346.

[3] City of Savannah, Sample Test Questions, www.savannahga.gov/DocumentCenter/View/4363.

[4] G.G. Rigsby, Who cares who Moses Rogers is?, Savannah Morning News (Aug. 20, 2011).

[5] City of Savannah, Tour Guide Study Manual & Permitting Process, http://‌www.savannahga.gov/‌index.aspx?NID=1493.

[6] Rigsby, supra.

[7] Savannah Code § 6-1510.

[8] City of Savannah, Fitness For Duty Physician’s Statement, www.savannahga.gov/DocumentCenter/View/4399.

[9] Savannah Code §§ 1-1013, 6-1550; Ga. Code Ann. § 36-30-8.

[10] See Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 585 (1983).

[11] Savannah 2014 Revenue Ordinance Article T, § 3(B).

[12] Morris M. Kleiner, Licensing occupations: Ensuring quality or restricting competition, at 1 (Kalamazoo, MI: Upjohn Institute, 2006).

[13] See Morris M. Kleiner & Alan B. Krueger, Analyzing the Extent and Influence of Occupational Licensing on the Labor Market, NBER Working Paper Series #14979, available at http://www.nber.org/papers/w14979.

[14] See Edwards v. District of Columbia, 755 F.3d 996 (D.C. Cir. 2014).

[15] See Kagan v. City of New Orleans, 753 F.3d 560 (5th Cir. 2014).

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